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Do you need help with Probate?

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Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:


CALL: (03) 8561 3318

Ever forgotten to reschedule an appointment and wound up with a surprise charge popping up against your credit card? It is not uncommon to experience the sting of an unexpected service fee and nor is it uncommon to ask whether businesses are allowed to do so in the first place. Do you have to pay these fees? Or alternatively, do you have any rights to challenge such fees?

Cancellation fees and policies

Generally speaking, agreeing to pay for a service (whether it be via booking an appointment or booking a service such as a hotel room) equates to entering into a verbal contract. As with any contract, these agreements come with terms and conditions to which you are bound, including any cancellation policy.

If a business has a cancellation policy in place, especially one involving cancellation fees, it is their responsibility to bring the policy to your attention at the time of booking their service. It is important that you make yourself aware of all terms and conditions of their policy prior to agreeing to pay for any such service.

Is it legal to have such policies?

The Australian Consumer Law requires that the terms and conditions of any contract with a consumer must be fair and not unreasonable. This means that businesses can legally have a cancellation policy requiring customers to pay cancellation fees under certain circumstances, so long as the fee is not extravagant or unreasonable.

Generally, cancellation fees must be capped to the amount of the damages actually sustained as a result of the cancellation, and consequently businesses are only entitled to claim ‘liquidated damages’ (an agreed fixed sum).

What is the court’s definition of ‘reasonable fees’?

The courts have taken a broad approach as to the definition of ‘reasonable fee’ and classify anything that is not ‘extravagant, exorbitant or unconscionable’ to be a sufficient standard of what is reasonable.

The courts have determined that businesses can take into account both financial and non-financial factors when considering what is a reasonable fee.

This encompasses factors such as:

  1. Whether the appointment was rescheduled
  2. Whether the business has been able to re-book the appointment that was missed
  3. Whether the business incurred any additional costs as a result of you not making the appointment
  4. Whether the cancellation has impaired business cash flow
  5. Whether a cancellation fee would encourage or discourage customers from returning to the business and/or maintaining their appointment, and
  6. The length of time, prior to the appointment, in which the cancellation of the service occurred.

It is likely that the interpretation of what amounts to a reasonable fee will be effected by the context of the COVID-19 pandemic.

What does this mean for you?

If you have been charged a relatively small fee, such as 10% of the cost of the service and have made the cancellation outside the terms of the cancellation policy without any extenuating circumstances, then usually you will be obliged to pay their cancellation fee.

However, there are certain factors that can create a more complex situation and may give rise to actionable consumer rights, such as:

  1. A very hefty fine
  2. You were never made aware of the cancellation policy
  3. A cancellation policy did not exist, or
  4. There were extenuating circumstances outside of your control, which gave you no choice but to cancel the service.

Where you find you have to cancel a service due to COVID-19 related circumstances, you may be able to rely on the last factor listed above to seek a reduction or waiver of the cancellation fee. An inability to proceed with the service due to government restrictions is likely to provide a strong basis for a reductions waiver; in contrast, it is unlikely that financial hardship alone will be sufficient to establish extenuating circumstances outside of your control.

How can Sharrock Pitman Legal assist?

If you believe you have been wrongly charged with a cancellation fee for a service under such circumstances, please feel free to contact Simon Matters on (03) 8561 3324. As Accredited Commercial Litigation Specialists, we are able to provide you with advice regarding your rights, in addition to guiding you through the steps for recovery that might be possible in your circumstances.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by one of our lawyers

,

.

Rhiannon Carpenter

For further information contact

Simon Matters

Simon is a Senior Associate of Sharrock Pitman Legal.

He is an Accredited Commercial Litigation Specialist (accredited by the Law Institute of Victoria) and deals with Litigation, Mediation of Disputes, and Law for Charities & Not for Profits. For further information, contact Simon Matters on his direct line (03) 8561 3324.

More on

Litigation [Courts & Tribunals]

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be placed on the Supreme Court website for at least 14 days prior to any application.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself does not take long to process the application (maybe another 1 to 2 weeks) and this is done 'on the papers' using the electronic Court filing system. This means you do not have to go to a court hearing. There is also a general discretion for the Court to issue a 'Requisition' asking that you provide more information before they process the application and this can delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

  • Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
  • There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
  • There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.
  • You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
  • It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE: 
(03) 8561 3318

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About Sharrock Pitman Legal

For fifty years Sharrock Pitman Legal has made a significant and long term contribution to meeting the legal needs of business owners and residents in the City of Monash and greater Melbourne area.